In case anyone has been hiking in desert for the month of January, we are the midst of a wave of frightening murders and attempted murders, including the attempted assassination of Rep. Gabrielle Gifford in Tucson, and in the same incident the murder of a federal judge and three other victims (including a 9-year-old girl) and of quite a number of police officers in Detroit, Miami, Indiana, and Oregon. It seems inevitable that despite the gravity of the economic and environmental threats facing us — if anything, underplayed in the President’s state of the union speech — fear of violent crime seems poised to jump again to a high position on the agenda of Americans.

As any reader of this blog will know, a reversion to the national obsession about crime strikes me as the worst possible thing we could do at this moment when we are still trying to wind down a disastrous and expensive war on crime (the prison population went down last year for the first time in 30+ years) that we cannot sustain even if we weren’t in such dire straights. Here are a few not-terribly-well-organized thoughts (but what are blogs for and I’m just off an all-night flight from Chicago to Edinburgh via Dublin).

While it is impossible to pin down the motives behind all of these incidents at this point (and in some cases we may never really know) we do not seem to be in the midst of a new crime wave. Violent crime, including murder, remains very, very low by the standards of the last forty years. The trend since the early 1990s has been down nationally, and in 2009 the U.S. enjoyed a homicide rate as low as any it has experienced since yours truly was 1 year old in 1960.

It is unlikely there is an organized war on government and law enforcement going on either, but time will tell (read Jim Gold’s reporting on that possibility on MSNBC’s website here).

However, this is clearly not a time that governments should be continuing to cut police forces which has been happening due to the severe state and local fiscal crisis. At least in some locales it is pretty clear that more and better policing has helped to drive down crime.

Keep in mind that unlike prison systems (which have expanded enormously since the 1970s)‚ police forces have increased only a fraction. And unlike prison spending, an expanded police force can address a wide range of community needs other than investigating crimes. As community problem solvers they can add enormously both to our efforts to keep neighborhoods safer from all kinds of routine threats and they are also a major factor in the resiliency of a community facing a catastrophic blow (as we saw all too clearly in NYC on September 11, 2001, and all too clearly did not see in New Orleans after Hurricane Katrina in September, 2005.

In response to widespread horror and fear, about these killings, some will undoubtedly call for harsher punishment for those who kill or attempt to kill. This would be a huge mistake. The U.S. already provides by far the harshest overall punishments for murder in the world. While other countries (including China and Iran) may execute more people for murder, almost no other country imprisons so many killers for what is likely to be the rest of their natural lives.

I realize that many Americans assume that murderers deserve no less than to spend their natural lives incarcerated (if not be executed). This is understandable. Killing for us is the cardinal offense (what treason and blasphemy were to the past). We may have different intuitions about how much punishment is enough but we all ought to reflect on at least three penal considerations.

First of all, given the fact that punishment for killing has increased very, very substantially in recent decades, there is little reason to believe these recent murders and attempted murders would have been deterred if only harsher punishments were in place. Jared Loughner of Arizona carried out his mass murder in a state that has and uses the death penalty frequently and which keeps other murderers in prison increasingly for the rest of the natural lives. Even if he was not deranged by severe mental illness (which he appears to have been), there is zero reason to believe he would have been deterred by a harsher penal threat. The same goes for the police shootings in Florida.

Nor do we need to keep people in prison for decades and decades just to assure that they will not kill again. Even when we used to let murders out, recidivism was extremely rare. Once someone has spent ten or twenty years in prison, and almost certainly aged to the point where they are over 35, there is very, very little reason to fear them, unless their individual prison behavior (like being an enforcer for their racist gang) indicates they have committed themselves to a permanent state of violence. Parole (where it has not been eliminated or reduced to near paralysis by earlier waves of crime fear) allows us to keep those individuals incapacitated while giving the others a huge incentive to do the work on themselves they will need to reassure officials.

Keep in mind that 99+ percent of all murders are done by someone who has never killed before and may never even have been imprisoned for any crime. If you really want to stop a killing before it happens, reducing access to guns for high risk individuals is the only realistic strategy, although more police on the streets and more mental health screening and treatment for those with alarming psychotic behavior could not hurt.

That leaves the question of how long we need to imprison someone for the purpose of communicating both the killer and to the broader community, our outrage that they have denied the essential dignity and immeasurable value of our fellow human being. I do not claim that there are any easy answers to that question whether in criminology or theology. I do not believe however that someone needs to die, or die in prison of old age, in order to accomplish that and at no prior stage of our history in the common law world did we ever commit ourselves to such a perspective. In the harsh justice days of Blackstone (an 18th century textbook author, on the common law of England, much beloved by the authors of the U.S. Constitution), while some killers who were considered especially heinous in their means or motives were hanged (and despite the fact that some people were hanged for stealing), most first-time killers received a branded M on their thumbs along with less than a year in jail (through a now largely forgotten legal procedure called ‘benefit of clergy’ which was, in a way, a form of parole).

My own view is that 10 years of imprisonment under appropriately austere conditions (even by general prison standards) ought to be enough for most first-time killers, followed by a comparable period of intensive parole supervision in the community. I would combine that with a requirement that they labor while in prison and on parole to pay off a substantial financial judgment to the family of the victim. For those who kill for heinous motives (like terrorism, monetary benefit, or to stop law enforcement), I would think doubling or tripling the prison portion of that punishment would be enough.

Setting some limits to our scale of punishment for this most provocative of crimes is, in my view, crucial to putting our currently excessive penal appetite (and unsustainable prison population) under control.

I had a chance recently to discuss some of these issues about murder with a wonderful audience of lawyers, prosecutors, and law students at Marquette University Law School’s amazing brand new state-of-the-art law building. Here is a link to a summary).

Comments to “Whither the War on Crime? How to respond (and not respond) to January’s string of outrageous murders and attempted murders”

A very small percentage of the population is responsible for an astonishingly disproportionate number of violent crimes committed in the United States. This is true even when we consider the fact that many of these individuals are incarcerated (and thus incapacitated) for large portions of their adult lives. As sentencing has become harsher and as we have incapacitated more violent criminals, rates of violent crime have declined a great deal. Naturally there are many reasons for these declines, but clearly greater incapacitation must be among the leading explanations (even if the deterrent effect of a longer sentence may not be).

It is also worth noting that we treat murderers harshly for reasons that extend well beyond rational policymaking. We keep murderers behind bars because, as a society, we have decided that the victim’s family and friends should not have to see the killer of their loved one walk free. We do so because we do not want to share the same streets with violent sociopaths who are willing to take a life merely because it suited their needs at the time. I agree that the size of our prison population is clearly unsustainable but murderers are only a small percentage of U.S. prisoners. The cost of placing every single convicted killer behind bars for the remainder of his or her natural life in perpetuity is little more than pocket change, when compared to a state’s overall fiscal outlay.

If we want to reduce our prison population, we can begin by legalizing the sale and distribution of narcotics. Doing so would greatly reduce the number of violent crimes that are associated with the drug trade and free up law enforcement resources to deal with real crimes (ones that have victims).

The truth mostly is that only big time recidivists do any time in California’s jails, and lawbreaking is an incurable progressive mental illness. Most criminals invariably have malignant levels of elevated self-esteem and feel society owes them: so when then need a car, they hijack one; when they need money, they rob someone; and when they get the urge, they rape someone; when they feel their sense of superiority over everyone around them slipping, the kill.

Few people doing hard time should ever be released back into a law abiding community, no matter what rights these convicts may have on paper. Special guarded communities are needed to keep these people isolated from US for the rest of their life — let them work their own fields to eat, build their own shelter, and barter for whatever they need from their ex-convict neighbors. When they commit crimes among themselves, let Judge Lynch decide the punishment.